The interesting part for those who follow judicial politics is the widely discussed (and, it would seem, reasonably likely) prospect of intervention by the European Court of Human Rights (ECHR). Although Swiss voters rejected membership in the European Union by an overwhelming margin a few years ago, Switzerland has been a member of the Council of Europe for decades and is thus subject to the jurisdiction of the ECHR.

The prospect of ECHR intervention in this particular instance illustrates a few closely related and increasingly apparent phenomena: the internationalization of constitutional law, the constitutionalization of international law, and the judicialization of politics.

(1) The internationalization of constitutional law: Here, domestic constitutional law is longer the last word within the domestic legal system. The applicable “constitutional law” in this case, defined as the higher law to which all other laws must yield, is likely to prove transnational in character, in the form of the European Convention on Human Rights. (Note, too, that this is not happening in the context of the European Union, where the member states have already ceded substantial policymaking authority to the union, and one might thus expect that the governing law would be transnational rather than national in character. The Council of Europe is more like a loose club than a supranational government or pooling of sovereignty.)

(2) The constitutionalization of international law: Note the sheer difficulty of distinguishing treaty law from constitutional law in a meaningful way here. From the property rights provisions in NAFTA that override the Calvo Clause of the Mexican Constitution to the prospect that a human rights treaty will prevent Switzerland from amending its constitution to discriminate against Muslims, it is reasonable to question what, if any, useful purpose is served by an analytical distinction between treaty law and domestic constitutional law.

(3) The judicialization of politics: The popular passage of a constitutional amendment that is opposed by the government gives the government a short-term incentive to support the judicialization of politics. Over the long run, the Swiss government, and other national governments, might not be happy to cede a constitutional policy veto to the ECHR, which has seemed at times to veer between excessive deference and overly exacting scrutiny. But in this case, it seems clear from the Swiss foreign minister’s comments that she would welcome intervention by the ECHR. And she is surely not the only Swiss official who is desperately hoping that the ECHR will step in and do what the Swiss government itself cannot do–at least, not without a little supranational judicial help.

2 Responses

It’s not necessarily the case that the ECHR will have the last word on this, because its power to enforce its decisions is quite weak.

If the Minaret ban is successfully challenged then the court can only award damages, not invalidate the ban. The case would then be referred to the Committee of Ministers, which can only apply diplomatic pressure or, as a last resort, expel Switzerland from the Council of Europe all together. Diplomatic actions might not be effective given that the Swiss government already opposes the ban. At the end of the day it will still be necessary to persuade Swiss voters to repeal the ban.

That is, unless there’s some specific rule in Swiss constitutional law that allows the European Convention to trump a constitutional amendment?

Not in constitutional law, but there is the scenario: after Swiss domestic tribunals have refused to grant a permit to construct a new minaret, the case could go to Strasbourg. If the ECtHR helds Switzerland to be in violation of the European Convention, then Art. 122 of the Law on the Swiss Federal Tribunal (http://www.admin.ch/ch/f/rs/173_110/a122.html) explicitly requires the tribunal to revise its judgment. The tribunal would have to allow the construction of the minaret. But of course, this would not eradicate the new constitutional provision itself – only another popular vote could do – Which leads to a tricky situation, as the blog mentions. That’s why we now have a complicated (some might say disturbing) debate on the relationship between democracy and human rights, between the ‘people’ and the ‘experts’ or between perceptions on popular sovereignty and international law…

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